Case_24_2755/24_2755_transcript.srt

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Good morning, Your Honors, thank you for your support.

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My name is Mihaela Cabrilla and I represent Hartford Insurance Company of Southeast, who

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is a third-party payer in this case.

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This appeal, Your Honors, presents an issue of statutory interpretation that is of first

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impression.

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Namely, how to interpret the mandatory indemnification subrogation right under the Workers' Compensation

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Statute in a way that does not render other provisions in the statute negatory or that

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doesn't limit that mandatory recovery right.

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Let me ask just an initial question.

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The legislature knows the term contractor, subcontractor, and sub-subcontractor, correct?

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Yes.

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And in this particular statute that is at issue, they don't refer to sub-subcontractors

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in terms of the reimbursement.

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They just refer to sub-subcontractors, correct?

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That's correct.

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Okay.

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I just want to make sure that we're on the same page as far as what the statute actually

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says.

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Right.

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And I want to, I will refer to the exact language of the statute in a little while.

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And I don't think I need to go through the facts of this case because they're very simple

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and disputed.

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There was a payment made by my client in the amount of.

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Well, it's simple if you have a flowchart maybe, but.

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My client made the payment in the amount of a little over $1.5 million in workers' compensation.

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And that payment was necessary because both the subcontractor in this case.

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Because of 1B.

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Because of 1B, exactly.

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And you're contending that because of 1B, one of your arguments, and I want to make

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sure you can let me know which one is your initial argument, your fallback argument.

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I have to admit, I got confused, not necessarily because of poor advocacy, but just, but I'm

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trying to address all of them in my thinking.

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So one of the, the crux of at least one of the arguments, if not both, your primary and

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fallback is that B makes all of the employees, employees of everybody essentially for, that's

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a crude retelling of it.

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But that makes Mr. Oliva, or Oliva, the employee of, um, Structures SPL.

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What?

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Structures SPL.

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Oh, yeah.

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And not only enterprise.

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Okay, but that, so that would make, then that would mean under D that, and I'll just read

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the sentence that D says, if a contractor, that's finish line, becomes liable for the

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payment of compensation to Oliva, of a subcontractor, Structures, but then that next phrase is

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what might be a problem for your theory.

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Who has failed to secure such payment?

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It was not Structures' obligation to secure the payment for Oliva.

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So I, I could concede that Structures meets part of essentially the definition of, or

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constitutes the subsequent term, the subcontractor, meaning that would be liable to the contractor

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because everybody's employees are everybody's employees.

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So yes, Oliva was Structures' employee and yes, finish line became liable to Oliva.

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But what's, how do you account for the other criteria, which is who has failed to secure

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such payment?

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That doesn't apply to Structures.

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Well, your Honor, with all due respect, it does under the privity, under the vertical

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privity scheme that the legislature has created.

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Where?

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B doesn't say, B, B doesn't say that, B doesn't say that Structures has to, you know, get

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insurance itself on behalf of its subcontractor's employee.

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My apologies.

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In other words, if Structure, let me answer this, if Structures, if, if the, you know,

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the regulatory investigator for workers' comp comes to the work site and, and Oliva was

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not covered, could that, could Structures be liable under 440.38?

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Yes, your Honor, because Structures is required, so Oliva became a statutory employee of Structure

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SBL under the statutory, the vertical privity scheme.

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Under B, under subsection B.

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Under subsection B. And if you, if your Honor looks at the-

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For what purpose?

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I mean, one purpose we could say is the last sentence, the contractor shall be, the contractor,

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we could say Structure's the contractor because they have a subcontractor, liable for payment

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except to employees that the subcontractor has secured.

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So they're liable for what, are they liable for payment for, for injury or are they liable

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under 440.38?

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They're-

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Or is that the same thing?

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They're liable to, it's exactly the same thing, they're liable to ensure that they have workers'

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compensation for all the employees, all the, including the statutory employees, not only

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its own employees, but also those of enterprises because Structure SBL sublet part of its contract

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with, with Finish Line to enterprises and that made it a contractor.

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If your Honor looks at the Florida Supreme Court that we cited in our brief on page 31,

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which is Arthur Collins and Son, the court explained in that case that each subcontractor

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who sublets a portion of his contract becomes a contractor for the purpose of securing compensation

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for the employees of his subcontractor.

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That's between, that makes the subcontractor a contractor.

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It doesn't make the primary contractor the contractor.

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I understand the vertical responsibilities, but that seems to specify that Structure is

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now in the shoes as a contractor, right?

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Right.

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And Less Enterprises is its subcontractor and Oliva is the employee of that subcontractor.

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So going back to the statute, it says if a contractor becomes liable for payment of compensation

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to the employees of a subcontractor, the contractor or other third party payer is entitled

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to recover.

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That, the way the plain language is that Structure is entitled to recover from Less Enterprise

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if Structure had made payment to Oliva, but Structure as the contractor didn't.

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And so that statute as worded, you're adding language that, and by the way, the general

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contractor, the big contractor, they're now standing in the shoes as contractor for Structure

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and contractor or subcontractor and being Less Enterprises, when Less Enterprises is

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a sub-subcontractor.

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The only reason why-

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And just so you know, from an intent standpoint, your argument does make some sense.

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But as we now know, the Florida Supreme Court and other courts are saying absolute textual

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analysis based on the words.

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And that's why my first question was, legislature knows how to use the term sub-subcontractor.

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And in this reimbursement section of the statute, they don't.

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And they could have.

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Well, then, in that sense, we could go to our second argument that is narrower.

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And the subcontractor vis-a-vis finish line builders and my client, who's the third party

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pay or Hartford, then the subcontractor is Structure SBL.

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It's not Enterprises.

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So then you would have the reimbursement that-

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But Oliva wasn't employed by Structure.

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But it's a statutory employee.

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And that's why Structure SBL is employed.

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Under B, Oliva is the employee of Structures as well?

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Is that what you're saying in response to-

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Yes, because that's the-

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Shall be deemed employed in one and the same business or establishment?

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Exactly.

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Leaving aside that it's possible that that's only for the purpose of the contractor being

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liable, not the subcontractor.

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But let's say that, again, that goes to my initial question for you then.

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Then presuming that is constructively the way that the statute operates, which is to

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say that Oliva is not only Enterprises' employee, it's also Structures' employee.

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I'm still at a loss to say that Structures is the one who failed to secure a payment

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in violation of 440.38.

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What does 440.38 say?

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It says, every employer shall secure the payment of compensation under this chapter by ensuring

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Every employer, including Structures-

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Again, so you're going to tell me that- Okay, so could finish line have been in violation

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of chapter 440.38 because it's sub, sub, sub, sub, sub, sub, subcontractor didn't carry

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workers comp?

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And let me tell you what I'm saying.

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So maybe I'm right, maybe I'm wrong.

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I'm making a distinction between liable.

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Yes, finish line is liable for its sub, sub, sub, sub, sub, sub, sub, subcontractor's employee

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who gets hurt if its sub, sub, sub, sub, sub, subcontractor doesn't have workers comp.

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Yeah, you got to pay out.

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But does that mean that there is a requirement under 440.38 if its sub, sub, sub, sub, sub,

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subcontractor doesn't carry workers comp for finish line to carry workers comp?

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Yes, Your Honor.

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Under the statute- Where?

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Finish line is required to, under 1A, any contractor or subcontractor who engages in

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any public or private construction in the state shall secure and maintain compensation

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for his or her employees under this chapter as provided in 440.

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Okay, so you're saying that B also applies to that.

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So in other words, every general contractor, again, not liability, I get it.

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What I, okay, the way I read 1A, you're going to correct me and opposing counsel is going

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to correct me back, but if, is that this, this is a liability.

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It's not a insurance, it's not a workers comp insurance mandate.

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It's a liability provision.

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Yeah, finish line's liable to LIBA because it's literally sub, subcontractor.

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So the subcontractor should have insured him and he got hurt.

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But does that mean that, again, some regulator from the division, Department of Labor, whatever

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we call it now, the DEO comes on the side and says, you're in violation of a regulation

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that requires you to actually have workers comp insurance for your sub, subcontractor's

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employees.

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Is that true?

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Your Honor, I can't speak as to what happened with another regulatory agency.

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I know, but just to clarify, that's what I want to know because that's what I think answers

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the question of, of, of this phrase.

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Who has failed to secure such payment in violation of 440.38?

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Because everybody in, who employs, so basically OLIVA was a statutory employee of structure

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SBL and structure SBL and the trial court found that structure SBL failed to secure

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workers comp, workers compensation insurance.

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And that's why.

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For whom?

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For its own employees?

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For all the employees.

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No, you said, you said the trial court.

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Well, that's because structure SBL becomes a contractor vis-a-vis enterprises, right?

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Back up for a second.

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Just, sorry.

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I just want to clarify.

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You said the trial court found that structures had failed to provide workers compensation

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to OLIVA, insurance to OLIVA?

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Right.

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Because it didn't carry workers compensation, either precision or structure SBL.

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That's why.

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Why would structures workers compensation insurance, insurance policy cover enterprises employees?

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Because.

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Why would it?

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Because.

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Would it?

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Because structure SBL became a contractor.

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Would structures insurance policy cover OLIVA if it had one?

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Yes.

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It should.

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I mean, it should have covered if it had one.

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It didn't have one.

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So the subcontractor is supposed to actually carry a policy for enterprises?

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Yes, your honor.

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Because the subcontractor, the subcontractor, what it did here, it sublet part of its contract

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to enterprises.

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So the first thing that happened is finish line sublet part of its contract to structure

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SBL.

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And then the next thing that happened, part of that contract that was sublet to structure

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SBL, structure SBL went on and sublet to precision.

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And now structure SBL becomes a contractor vis-a-vis precision.

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And that's why it's obligated to have insurance to cover the statutory employees of, that

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becomes statutory employees of structure SBL.

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What support do you have for that?

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I understand that it becomes liable.

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I understand, I can buy that structures is liable for OLIVAs to pay for OLIVAs injuries

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because enterprises did not have insurance compensation.

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Neither enterprises nor structure SBL.

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And I wanted to point out...

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that the appellee did not cross-appeal that determination

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that basically it was a subcontractor

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and it had the obligation to carry insurance

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and because it didn't carry insurance

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and Precision didn't carry insurance,

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that's when the judge-

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Again, what was its obligation to carry insurance

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for its own employees, right?

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But the employees of the sub and the subcontractor

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are considered to be employed by the same-

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For what purpose?

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For the purpose of carrying insurance for them

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or for the purpose of liability

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in case your subcontractor doesn't have

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workers' comp insurance for its employees?

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That's two separate things, isn't it?

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Yes and no in the sense that if you don't carry insurance,

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how are you gonna be able to-

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Pay out-of-pocket, get sued and pay that way.

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Well, that's the very problem why we are here.

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Perhaps some of the subcontractors

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cannot pay out-of-pocket if they-

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Well, but that's the difference

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whether it's a good business practice

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to be self-insured for that purpose

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or carry a larger, I don't even know if that exists,

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a policy to cover your subcontractor's employees

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under workers' comp is a different question

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than whether the Chapter 440 requires by virtue of 1B,

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which seems to me to be in a liability provision,

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not a insurance mandate provision.

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Ms. Kabulia, before you answer that,

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you didn't ask to reserve time for rebuttal.

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You're at four minutes, so I don't know.

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You can answer that question,

241
00:16:34,399 --> 00:16:36,279
but if you wanna reserve any time for rebuttal-

242
00:16:36,279 --> 00:16:38,200
I would like to reserve some time for rebuttal.

243
00:16:38,200 --> 00:16:39,038
You can answer that question.

244
00:16:39,038 --> 00:16:42,399
May I say one thing that I wanted to say?

245
00:16:42,399 --> 00:16:45,759
Even under the narrower construction,

246
00:16:45,759 --> 00:16:50,759
it should still be the structure SPS,

247
00:16:51,240 --> 00:16:56,240
who's liable to, I mean, who should reimburse my client,

248
00:16:58,000 --> 00:17:01,479
and then structure SBL could go after precision

249
00:17:01,479 --> 00:17:06,479
because the subcontractor vis-a-vis the Hartford,

250
00:17:06,600 --> 00:17:10,318
my client, is structure SBL,

251
00:17:10,318 --> 00:17:12,720
not the sub-subcontractor precision,

252
00:17:12,720 --> 00:17:14,200
and I'll reserve my time.

253
00:17:14,200 --> 00:17:15,038
Very good, thank you.

254
00:17:15,038 --> 00:17:16,160
You'll have four minutes.

255
00:17:21,779 --> 00:17:23,440
Good morning, everyone.

256
00:17:23,440 --> 00:17:24,519
Good morning.

257
00:17:24,519 --> 00:17:26,440
May it please the court, Ronald J. Israel

258
00:17:26,440 --> 00:17:28,959
from the firm of Israel Ponzoli,

259
00:17:28,959 --> 00:17:31,860
on behalf of the Apolli Structure SBL.

260
00:17:31,860 --> 00:17:34,399
We appreciate you hearing us today.

261
00:17:34,399 --> 00:17:36,360
Your honors, this case should be affirmed

262
00:17:36,360 --> 00:17:38,038
for one straightforward reason.

263
00:17:38,038 --> 00:17:40,759
The statute is broken down into three different subparts,

264
00:17:40,759 --> 00:17:42,920
and each one has its own function.

265
00:17:42,920 --> 00:17:44,840
The first part, the 440,

266
00:17:45,840 --> 00:17:49,399
the part that we're talking about today is 440.10.1.D.1.

267
00:17:49,399 --> 00:17:51,059
I'm gonna say D all day today

268
00:17:51,059 --> 00:17:52,619
because it's just the way I do it,

269
00:17:52,619 --> 00:17:56,299
but in section D, it creates the reimbursement remedy

270
00:17:57,160 --> 00:18:00,299
for the contractor, whatever contractor it is

271
00:18:00,299 --> 00:18:05,179
that ends up paying, has a reimbursement right against the,

272
00:18:05,179 --> 00:18:07,818
the word the in quotes, subcontractor

273
00:18:07,818 --> 00:18:10,818
whose failure caused the payment,

274
00:18:10,818 --> 00:18:13,420
and in this case, the lower court properly found

275
00:18:13,420 --> 00:18:17,538
that the subcontractor whose failure caused the payment

276
00:18:17,538 --> 00:18:22,538
by a contractor, doesn't say which one, was Enterprises,

277
00:18:22,759 --> 00:18:26,079
and Enterprises rightfully got judgment.

278
00:18:26,079 --> 00:18:30,440
1B, what it does, and they focused all of their argument

279
00:18:30,440 --> 00:18:34,759
on 1B, 1B is the vertical privity and the immunity statute.

280
00:18:34,759 --> 00:18:37,318
That tells us why Hartford paid.

281
00:18:37,318 --> 00:18:39,679
The law makes finish line builders

282
00:18:39,679 --> 00:18:44,459
as the general contractor ultimately 100% responsible

283
00:18:44,459 --> 00:18:47,220
for the provision of workers' comp on its site

284
00:18:47,878 --> 00:18:49,000
and it can do that in two ways.

285
00:18:49,000 --> 00:18:52,720
It can carry its own policy, or it can ensure

286
00:18:52,720 --> 00:18:54,598
that every subcontractor that steps

287
00:18:54,598 --> 00:18:57,920
on that site has appropriate coverage,

288
00:18:57,920 --> 00:19:00,878
and in the instances where they don't,

289
00:19:00,878 --> 00:19:02,720
the statute's very clear.

290
00:19:02,720 --> 00:19:05,360
The subcontractor who failed to secure privilege

291
00:19:05,360 --> 00:19:08,440
for its employees, it doesn't say statutory employees,

292
00:19:08,440 --> 00:19:10,840
it doesn't say anyone in the vertical chain,

293
00:19:10,840 --> 00:19:12,878
it doesn't say up and down the chain,

294
00:19:12,878 --> 00:19:14,878
it doesn't say any of these words,

295
00:19:14,878 --> 00:19:17,340
and that's Hartford's interpretation today.

296
00:19:17,340 --> 00:19:20,739
They want the court to expand the structure

297
00:19:20,739 --> 00:19:25,019
of what it means, and it's just simply not there.

298
00:19:25,019 --> 00:19:28,459
Can you answer my question that I posed to opposing counsel,

299
00:19:28,459 --> 00:19:30,019
and I wanna invite you to tell me

300
00:19:30,019 --> 00:19:31,559
that my question was misguided,

301
00:19:31,559 --> 00:19:33,459
even though it seemed probably ostensibly

302
00:19:33,459 --> 00:19:36,880
to be one that would favor you.

303
00:19:38,599 --> 00:19:41,539
Am I misguided in focusing on the phrase

304
00:19:41,539 --> 00:19:43,500
who has failed to secure such payment

305
00:19:43,519 --> 00:19:46,759
in violation of section 40.38?

306
00:19:46,759 --> 00:19:48,559
What does that mean?

307
00:19:48,559 --> 00:19:50,599
Absolutely, you're right, that's the whole case.

308
00:19:50,599 --> 00:19:54,078
Does that mean secure insurance?

309
00:19:54,078 --> 00:19:58,000
Who failed to secure compensation coverage, payment.

310
00:19:58,000 --> 00:20:00,759
In this case, Hartford paid out a lot of money,

311
00:20:00,759 --> 00:20:02,639
and they're saying, we wanna get it back,

312
00:20:02,639 --> 00:20:04,798
and the question is, under 1D,

313
00:20:04,798 --> 00:20:06,380
who do they get it back from?

314
00:20:06,380 --> 00:20:09,000
What if you had, think about it this way, your honors,

315
00:20:09,000 --> 00:20:12,000
what if you had 15 sub, sub, sub, sub contractors,

316
00:20:12,000 --> 00:20:15,380
and someone down the line doesn't have coverage?

317
00:20:15,380 --> 00:20:17,899
The statute doesn't say it goes back up the chain

318
00:20:17,899 --> 00:20:21,099
to the next guy, it says the contractor

319
00:20:21,099 --> 00:20:24,419
who failed to secure coverage for its employee,

320
00:20:24,419 --> 00:20:25,899
and that's right in the statute.

321
00:20:25,899 --> 00:20:28,179
And then there's, but the opposing party is saying

322
00:20:28,179 --> 00:20:33,179
that the, it is, I keep my S's incorrect,

323
00:20:35,459 --> 00:20:37,500
structures as employee.

324
00:20:37,500 --> 00:20:38,340
Okay.

325
00:20:38,340 --> 00:20:40,459
That does say, shall be deemed to be employed

326
00:20:40,459 --> 00:20:41,899
in one and the same business.

327
00:20:42,679 --> 00:20:44,720
I don't have any arguments with 1B.

328
00:20:44,720 --> 00:20:48,199
1B is the vertical privity and immunity statute,

329
00:20:48,199 --> 00:20:50,440
and what that does is she is correct,

330
00:20:50,440 --> 00:20:54,019
it makes everybody a statutory employer.

331
00:20:54,019 --> 00:20:56,199
Okay, and it does, and that's, remember that word.

332
00:20:56,199 --> 00:20:58,259
If that's the case, then why isn't,

333
00:20:59,320 --> 00:21:03,980
why wasn't structures required to secure payment for Oliva?

334
00:21:05,119 --> 00:21:10,078
Because the statute puts the burden, again,

335
00:21:10,099 --> 00:21:12,179
because the statute, let me read it to you.

336
00:21:12,179 --> 00:21:14,358
Sorry, let me just get exactly here.

337
00:21:16,119 --> 00:21:17,320
All right.

338
00:21:17,320 --> 00:21:20,660
Okay, so in B, it says, and the contractor,

339
00:21:20,660 --> 00:21:22,539
meaning the general contractor, is liable for,

340
00:21:22,539 --> 00:21:24,459
shall secure the payment of compensation

341
00:21:24,459 --> 00:21:27,279
to all such employees, except to the employees

342
00:21:27,279 --> 00:21:30,459
of a subcontractor who has secured such payment.

343
00:21:30,459 --> 00:21:34,220
It makes the general contractor ultimately responsible,

344
00:21:34,220 --> 00:21:37,340
except whether it's a subcontractor who has coverage.

345
00:21:37,340 --> 00:21:39,619
And the Supreme Court of Florida's already addressed this.

346
00:21:40,119 --> 00:21:42,480
It's in the Fidelity versus Arthur Collins case.

347
00:21:42,480 --> 00:21:44,899
They actually cite it, thinking it helps them,

348
00:21:44,899 --> 00:21:48,380
but it actually illustrates what happened here.

349
00:21:48,380 --> 00:21:51,480
In that case, you had a contractor,

350
00:21:51,480 --> 00:21:54,440
a sub, and a sub-subcontractor.

351
00:21:54,440 --> 00:21:56,399
But in that case, the same thing,

352
00:21:56,399 --> 00:22:00,039
the sub-subcontractor failed to have coverage,

353
00:22:00,039 --> 00:22:02,559
and then the commission came back and said,

354
00:22:02,559 --> 00:22:04,679
well, we're gonna make it both.

355
00:22:04,679 --> 00:22:06,199
But the statute doesn't say both.

356
00:22:06,199 --> 00:22:08,759
It says the subcontractor who failed

357
00:22:08,759 --> 00:22:11,298
gets the responsibility.

358
00:22:11,298 --> 00:22:15,699
And the case cites a Pennsylvania case, the Quall case,

359
00:22:15,699 --> 00:22:19,940
which talks about that the contractor shall be liable

360
00:22:19,940 --> 00:22:23,820
and shall secure, except for when they have been secured.

361
00:22:23,820 --> 00:22:27,259
And it says it's to protect employees,

362
00:22:27,259 --> 00:22:29,099
and it's ultimately the contractor

363
00:22:29,099 --> 00:22:32,858
who has to provide compensation liability across the board,

364
00:22:32,858 --> 00:22:34,699
and he can do that in his subcontracts.

365
00:22:34,699 --> 00:22:38,099
And if he doesn't, if he doesn't require that,

366
00:22:38,160 --> 00:22:42,279
the statute makes him liable under 1B for coverage.

367
00:22:42,279 --> 00:22:44,959
So again, what they want you to add,

368
00:22:44,959 --> 00:22:46,959
they want you to change the statute to say

369
00:22:46,959 --> 00:22:50,679
if the contractor becomes liable to the employees,

370
00:22:50,679 --> 00:22:53,519
or they want you to say the statutory employees

371
00:22:53,519 --> 00:22:55,759
of a subcontractor, and they wanna say,

372
00:22:56,840 --> 00:22:58,599
then it puts the statutory modifier.

373
00:22:58,599 --> 00:23:02,720
The subcontractor who has failed to secure such payment.

374
00:23:02,720 --> 00:23:04,959
They wanna say any subcontractor

375
00:23:04,959 --> 00:23:06,880
who failed to secure such payment.

376
00:23:06,880 --> 00:23:09,619
Anyone in the chain who failed.

377
00:23:09,619 --> 00:23:11,660
Because there could be 15 subcontractors.

378
00:23:11,660 --> 00:23:14,259
Our case, luckily, is a little simpler than that.

379
00:23:14,259 --> 00:23:16,739
But the statute says exactly what it says.

380
00:23:16,739 --> 00:23:19,019
We're not asking for a narrow interpretation.

381
00:23:19,019 --> 00:23:21,578
We're asking for a harmonious interpretation

382
00:23:21,578 --> 00:23:24,619
where each section is given its proper due.

383
00:23:24,619 --> 00:23:28,179
The better reading of the statute is 1B protects the worker

384
00:23:28,179 --> 00:23:30,619
and places ultimate payment responsibility

385
00:23:30,619 --> 00:23:31,860
on the general contractor.

386
00:23:31,860 --> 00:23:33,660
It says that in all the cases.

387
00:23:33,660 --> 00:23:36,300
And that responsibility is also outlined

388
00:23:36,639 --> 00:23:37,840
in the case law, it's also in our brief.

389
00:23:37,840 --> 00:23:40,840
But in Arthur Collins' case, I'm looking at it here.

390
00:23:40,840 --> 00:23:44,480
I mean, didn't the Florida Supreme Court say

391
00:23:44,480 --> 00:23:47,878
that the person in your spot, the subcontractor,

392
00:23:47,878 --> 00:23:50,840
had a duty to have insurance?

393
00:23:50,840 --> 00:23:52,480
In that case, they do.

394
00:23:52,480 --> 00:23:55,199
And there is a factual dispute.

395
00:23:55,199 --> 00:23:57,480
It doesn't affect your ruling today.

396
00:23:57,480 --> 00:24:00,160
It does not affect affirmance or reversal,

397
00:24:00,160 --> 00:24:02,039
if that's the case.

398
00:24:02,039 --> 00:24:05,079
The factual dispute is whether SBL had any employees

399
00:24:05,099 --> 00:24:07,660
in Florida and had to have coverage anyway.

400
00:24:07,660 --> 00:24:09,539
The facts, and it's cited in our brief,

401
00:24:09,539 --> 00:24:10,939
it's addressed briefly.

402
00:24:10,939 --> 00:24:13,378
Because they not only asked for reversal,

403
00:24:13,378 --> 00:24:15,300
they asked for a reversal.

404
00:24:15,300 --> 00:24:18,220
But Oliva is a statutory employee of SBL.

405
00:24:19,660 --> 00:24:22,740
And your client signed a contract

406
00:24:22,740 --> 00:24:24,800
that would require actual services

407
00:24:24,800 --> 00:24:26,340
on that construction site,

408
00:24:26,340 --> 00:24:29,099
and then you just sublet it away, right?

409
00:24:29,099 --> 00:24:30,579
Exactly, that is correct.

410
00:24:30,579 --> 00:24:33,898
And the factual issues that prohibited them

411
00:24:33,920 --> 00:24:35,199
from getting summary judgment

412
00:24:35,199 --> 00:24:37,259
are the waiver and estoppel issues.

413
00:24:37,259 --> 00:24:42,119
Because the insurance certificates were unsigned,

414
00:24:42,119 --> 00:24:44,840
the contract addendum requiring comp,

415
00:24:44,840 --> 00:24:47,639
because it's argued, again, this is a factual dispute,

416
00:24:47,639 --> 00:24:49,599
which really is not before us today,

417
00:24:49,599 --> 00:24:51,439
but it was argued that they knew SBL

418
00:24:51,439 --> 00:24:53,119
was putting someone else on the site.

419
00:24:53,119 --> 00:24:57,639
SBL never stepped foot in Florida on the job site.

420
00:24:57,639 --> 00:25:01,519
An independent project manager came down from Canada once,

421
00:25:01,539 --> 00:25:04,898
not related to us, by virtue of employment.

422
00:25:04,898 --> 00:25:07,139
And again, Structure SBL's employees

423
00:25:07,139 --> 00:25:09,059
are covered in Canada under CNIST,

424
00:25:09,059 --> 00:25:10,818
which is also put forward in our brief.

425
00:25:10,818 --> 00:25:11,898
So there's a factual dispute

426
00:25:11,898 --> 00:25:14,099
whether we had to have coverage anyway.

427
00:25:14,099 --> 00:25:18,300
The contract's unsigned on the comp insurance pages,

428
00:25:18,300 --> 00:25:21,378
and the certificate that Structure SBL provided

429
00:25:21,378 --> 00:25:23,259
to finish line builders to get this job

430
00:25:23,259 --> 00:25:24,660
showed it had no workers' comp,

431
00:25:24,660 --> 00:25:27,619
and finish line proceeded anyway.

432
00:25:27,619 --> 00:25:30,740
And what the law does when a contractor

433
00:25:31,740 --> 00:25:35,939
accepts a subcontractor that doesn't have coverage,

434
00:25:35,939 --> 00:25:38,459
they automatically, under 440,

435
00:25:38,459 --> 00:25:41,439
they take responsibility for those comp coverage

436
00:25:41,439 --> 00:25:43,420
for all the employees down the chain.

437
00:25:43,420 --> 00:25:48,420
But your client, as the contractor for the other company,

438
00:25:50,420 --> 00:25:53,099
it would have accepted that same liability, right?

439
00:25:53,099 --> 00:25:58,099
It would have except if we stand in the shoes

440
00:25:58,619 --> 00:26:00,780
of the word contractor now, right,

441
00:26:00,780 --> 00:26:03,800
as vis-a-vis enterprises.

442
00:26:03,800 --> 00:26:05,599
Then the statute's even more clear.

443
00:26:05,599 --> 00:26:08,559
The subcontractor who failed to secure coverage,

444
00:26:08,559 --> 00:26:10,480
in this case, is enterprises.

445
00:26:10,480 --> 00:26:12,878
No matter which road you go down,

446
00:26:12,878 --> 00:26:15,840
the contractor, whether I call him a subcontractor.

447
00:26:15,840 --> 00:26:18,398
Your position is that even though

448
00:26:19,860 --> 00:26:22,980
your client could be deemed a contractor

449
00:26:22,980 --> 00:26:25,999
in one circumstance, it doesn't change the nature

450
00:26:25,999 --> 00:26:29,999
of the relationship between it and the general contractor.

451
00:26:29,999 --> 00:26:34,999
It does not, and it also doesn't collapse 1B and 1D into one.

452
00:26:35,898 --> 00:26:36,898
You can't do that.

453
00:26:36,898 --> 00:26:38,300
That's not what happens.

454
00:26:38,300 --> 00:26:41,220
They are separate and distinct statutes.

455
00:26:41,220 --> 00:26:43,180
I'm sorry, separate and distinct provisions.

456
00:26:43,180 --> 00:26:46,259
And you can't erase the statutory modifier

457
00:26:46,259 --> 00:26:50,378
is the employee's, you've secured payment,

458
00:26:50,378 --> 00:26:51,499
and let me just read it for you again,

459
00:26:51,499 --> 00:26:52,999
because it's really important.

460
00:26:57,019 --> 00:26:59,340
To the employee of a subcontractor,

461
00:26:59,680 --> 00:27:02,160
the employee in this case we know is Aleeva,

462
00:27:02,160 --> 00:27:07,160
the subcontractor we know is enterprises,

463
00:27:07,160 --> 00:27:08,639
I'm sorry to get their name wrong,

464
00:27:08,639 --> 00:27:11,759
who has failed to secure such payment.

465
00:27:11,759 --> 00:27:14,079
Every way you read it, whether we're the contractor

466
00:27:14,079 --> 00:27:15,160
or the subcontractor.

467
00:27:15,160 --> 00:27:18,079
Bozengas was saying, though, that the obligations

468
00:27:18,079 --> 00:27:22,519
of 440.38 apply up the chain by virtue of B.

469
00:27:22,519 --> 00:27:27,398
In other words, that A sub, there's two phrases, right?

470
00:27:27,398 --> 00:27:30,860
Two phrases, A subcontractor and the subcontractor.

471
00:27:31,818 --> 00:27:33,860
Finish line wants the subcontractor

472
00:27:33,860 --> 00:27:38,619
to be able to be applied to structures.

473
00:27:40,818 --> 00:27:41,920
She'll correct me if I'm wrong,

474
00:27:41,920 --> 00:27:44,059
but her argument is that that phrase,

475
00:27:44,059 --> 00:27:45,898
who has failed to secure such payment violation

476
00:27:45,898 --> 00:27:50,059
of 440.38 applies equally to structures and enterprises

477
00:27:50,059 --> 00:27:55,059
because Oliva is just as much substances as,

478
00:27:55,160 --> 00:27:59,039
I mean, structures employee as it is enterprises

479
00:27:59,039 --> 00:28:00,599
by virtue of section B.

480
00:28:00,599 --> 00:28:03,160
Again, I don't quibble with 440.38

481
00:28:03,160 --> 00:28:04,999
and I don't quibble with 1B at all.

482
00:28:04,999 --> 00:28:07,039
It does, there is a privity scheme,

483
00:28:07,039 --> 00:28:09,559
there is a statutory employer scheme.

484
00:28:09,559 --> 00:28:11,079
I don't have any problem with that.

485
00:28:11,079 --> 00:28:12,398
What I have a problem with

486
00:28:12,398 --> 00:28:15,199
and what the trial court correctly did

487
00:28:15,199 --> 00:28:18,240
is the statute, no matter which way you read it,

488
00:28:18,240 --> 00:28:19,759
whether you call us the contractor

489
00:28:19,759 --> 00:28:23,039
for the purposes of the sub-subcontract,

490
00:28:23,579 --> 00:28:27,259
the statute is very clear on, not on the liability,

491
00:28:27,259 --> 00:28:28,920
the liability is part B,

492
00:28:28,920 --> 00:28:32,459
but on the recovery of benefits paid

493
00:28:32,459 --> 00:28:36,300
and the right to is against the employer

494
00:28:36,300 --> 00:28:38,139
who employed someone in the state.

495
00:28:38,139 --> 00:28:39,300
That's Oliva.

496
00:28:39,300 --> 00:28:40,459
It doesn't say employer.

497
00:28:40,459 --> 00:28:43,099
It says, I take your meaning.

498
00:28:43,099 --> 00:28:47,220
It means someone who is the employer for the employee,

499
00:28:47,220 --> 00:28:51,220
but by B, according to subsection B,

500
00:28:51,240 --> 00:28:54,079
structures is the employer of Oliva.

501
00:28:54,079 --> 00:28:55,800
It doesn't say statutory though.

502
00:28:55,800 --> 00:28:57,079
There's a difference.

503
00:28:57,079 --> 00:29:00,039
If the legislature wanted it to say statutory employee

504
00:29:00,039 --> 00:29:02,079
or anyone in the chain, it could have said that.

505
00:29:02,079 --> 00:29:03,318
So it could have said.

506
00:29:03,318 --> 00:29:04,840
But it's the same statute.

507
00:29:05,999 --> 00:29:08,039
In a case of contractor sublets,

508
00:29:08,039 --> 00:29:10,759
all the employees of such contractor, subcontractor,

509
00:29:10,759 --> 00:29:13,119
subcontractors engaged in such work

510
00:29:13,119 --> 00:29:15,079
shall be deemed to be employed

511
00:29:15,079 --> 00:29:17,720
in one and the same business or establishment.

512
00:29:17,720 --> 00:29:18,780
Agreed.

513
00:29:18,780 --> 00:29:19,619
Okay.

514
00:29:20,079 --> 00:29:21,480
Again, I don't quibble with that.

515
00:29:21,480 --> 00:29:24,360
It's simple, a plain reading of this statute

516
00:29:24,360 --> 00:29:26,840
says it's directing exactly.

517
00:29:26,840 --> 00:29:29,519
It says a contractor becomes-

518
00:29:29,519 --> 00:29:30,360
That's my point is this.

519
00:29:30,360 --> 00:29:32,318
We can quibble about what that means,

520
00:29:32,318 --> 00:29:33,840
but for you to say,

521
00:29:33,840 --> 00:29:37,840
well, subsection D needs to say statutory employee.

522
00:29:39,398 --> 00:29:42,439
I don't, I can be ambivalent

523
00:29:42,439 --> 00:29:44,360
about what B means when it says that,

524
00:29:44,360 --> 00:29:46,639
but I'm not, I don't think,

525
00:29:47,099 --> 00:29:52,099
you can use B to aid your interpretation of D

526
00:29:54,259 --> 00:29:56,939
even though employee doesn't say statutory

527
00:29:56,939 --> 00:29:59,619
because D, B talks about what employees.

528
00:29:59,619 --> 00:30:02,099
I agree that you can read them in concert,

529
00:30:02,099 --> 00:30:04,259
and you should read them in concert.

530
00:30:04,259 --> 00:30:07,299
But again, the statute's very pointed in this section.

531
00:30:07,299 --> 00:30:09,139
And it says the subcontractor who

532
00:30:09,139 --> 00:30:10,579
failed to secure such payment.

533
00:30:10,579 --> 00:30:11,500
And the subcontractor.

534
00:30:11,500 --> 00:30:13,899
So now we're back to my other question, which

535
00:30:13,899 --> 00:30:17,859
is, can it be argued that Structures failed

536
00:30:17,859 --> 00:30:21,299
to secure payment in violation of 443-8,

537
00:30:21,299 --> 00:30:26,979
given that under subsection B, Oliva is its employee as well?

538
00:30:26,979 --> 00:30:28,379
They've made that argument.

539
00:30:28,379 --> 00:30:29,779
The court rejected it.

540
00:30:29,779 --> 00:30:32,819
I know, I'm asking you whether we should reject it.

541
00:30:32,819 --> 00:30:35,699
Oh, no, no, you should reject that argument.

542
00:30:35,699 --> 00:30:38,339
There's factual disputes on whether SBI had that.

543
00:30:38,339 --> 00:30:40,839
No, no, no, I don't want to know about the factual disputes

544
00:30:40,839 --> 00:30:43,019
about whether, unless I'm starting to cut you off,

545
00:30:43,019 --> 00:30:46,619
whether Structures actually has employees itself.

546
00:30:46,619 --> 00:30:48,258
Sure.

547
00:30:48,258 --> 00:30:49,500
I'm not talking about that.

548
00:30:49,500 --> 00:30:50,459
OK.

549
00:30:50,459 --> 00:30:55,258
I'm talking about whether, by virtue of Oliva

550
00:30:55,258 --> 00:31:02,418
being, by operation of statute, Structures' employee

551
00:31:02,418 --> 00:31:07,858
in subsection B, why can't it be concluded

552
00:31:07,858 --> 00:31:11,299
that Structures failed to secure such payment,

553
00:31:11,299 --> 00:31:16,858
meaning whatever it's obligated under 440-38 to provide

554
00:31:16,858 --> 00:31:18,379
for Oliva?

555
00:31:18,379 --> 00:31:21,779
It's because it would create full stream chaos.

556
00:31:21,779 --> 00:31:23,739
No, I want to know textually.

557
00:31:23,739 --> 00:31:24,979
OK.

558
00:31:25,858 --> 00:31:28,458
The D is very specific.

559
00:31:28,458 --> 00:31:30,659
It's the employees of the subcontractor

560
00:31:30,659 --> 00:31:32,898
who failed to secure coverage.

561
00:31:32,898 --> 00:31:34,979
And again, you can't just repeat the question.

562
00:31:34,979 --> 00:31:36,258
No, no, no, I'm just reading.

563
00:31:36,258 --> 00:31:37,299
I'm reading.

564
00:31:37,299 --> 00:31:37,979
I apologize.

565
00:31:37,979 --> 00:31:39,479
Maybe I misunderstood your question.

566
00:31:39,479 --> 00:31:41,858
I'm trying to read from the statute to answer it.

567
00:31:41,858 --> 00:31:42,379
OK.

568
00:31:42,379 --> 00:31:47,138
That the first part talks about contractor B

569
00:31:47,138 --> 00:31:48,699
and the privity thing.

570
00:31:48,699 --> 00:31:51,818
The second part talks about who has to reimburse

571
00:31:51,818 --> 00:31:54,659
if a contractor gets hit.

572
00:31:55,379 --> 00:31:57,818
And the Collins case, in that case,

573
00:31:57,818 --> 00:32:01,339
because both the contractor and the subcontractor

574
00:32:01,339 --> 00:32:04,779
have coverage, they said that the first guy that

575
00:32:04,779 --> 00:32:06,458
has coverage pays.

576
00:32:06,458 --> 00:32:10,619
But in that case, I would argue that in the Collins case,

577
00:32:10,619 --> 00:32:13,939
if the second first-tier subcontractor didn't have it,

578
00:32:13,939 --> 00:32:16,098
the contractor would have had to pay.

579
00:32:16,098 --> 00:32:19,419
And then he still has to go after the subcontractor whose

580
00:32:19,419 --> 00:32:21,298
actual employee it was, because it doesn't

581
00:32:21,298 --> 00:32:22,818
say the word statutory.

582
00:32:22,818 --> 00:32:24,098
Let me ask you.

583
00:32:24,098 --> 00:32:26,980
This goes to this whole textual analysis.

584
00:32:26,980 --> 00:32:32,779
Subparagraph or paragraph 1B in 44010

585
00:32:32,779 --> 00:32:39,779
has been interpreted to provide for vertical responsibility.

586
00:32:39,779 --> 00:32:45,098
But the wording in that statute talks about,

587
00:32:45,098 --> 00:32:46,779
to use the other side's argument,

588
00:32:46,779 --> 00:32:52,339
that if SBL is now treated as the contractor,

589
00:32:52,339 --> 00:32:57,818
then Hartford, absent the interpretation of case law,

590
00:32:57,818 --> 00:33:01,980
shouldn't have been responsible to pay.

591
00:33:01,980 --> 00:33:04,059
Well, the case law and the statute

592
00:33:04,059 --> 00:33:06,139
absolutely makes the finish line builders

593
00:33:06,139 --> 00:33:09,298
and Hartford, your third-party payer, ultimately responsible.

594
00:33:09,298 --> 00:33:11,738
How does Bede make that?

595
00:33:11,738 --> 00:33:14,980
It's because it says, if the contractor sublets,

596
00:33:14,980 --> 00:33:18,419
he's responsible, except to the employees of a sub who

597
00:33:18,419 --> 00:33:19,738
has secured some payment.

598
00:33:19,779 --> 00:33:23,738
But the other side's argument is that SBL now

599
00:33:23,738 --> 00:33:27,298
becomes a statutory contractor.

600
00:33:27,298 --> 00:33:31,098
And so if it is a statutory contractor,

601
00:33:31,098 --> 00:33:34,738
then Hartford's responsibility isn't

602
00:33:34,738 --> 00:33:40,818
to that statutory contractor and all of its subcontractors,

603
00:33:40,818 --> 00:33:43,500
but for case law that says, yes, it is.

604
00:33:43,500 --> 00:33:47,538
And so how do you reconcile that interpretation,

605
00:33:47,538 --> 00:33:50,658
that there is vertical privity?

606
00:33:50,658 --> 00:33:55,178
And yet, why wouldn't that same analysis apply to D?

607
00:33:55,178 --> 00:33:58,259
Because it doesn't say jointly and severally liable.

608
00:33:58,259 --> 00:34:00,339
They've already received a judgment.

609
00:34:00,339 --> 00:34:02,579
But B doesn't.

610
00:34:02,579 --> 00:34:05,639
There seems to me an intellectual leap

611
00:34:05,639 --> 00:34:10,378
in vertical privity, because the statute says what it says.

612
00:34:10,378 --> 00:34:16,739
And so if the primary is who precision?

613
00:34:16,739 --> 00:34:17,578
No, finish line.

614
00:34:17,578 --> 00:34:18,819
Finish line.

615
00:34:18,819 --> 00:34:22,259
So if finish line is a contractor,

616
00:34:22,259 --> 00:34:25,059
and now there is a subcontractor who is converted

617
00:34:25,059 --> 00:34:31,139
into being a contractor, what does that make finish line?

618
00:34:31,139 --> 00:34:32,179
A supercontractor.

619
00:34:32,179 --> 00:34:33,340
It's the general contractor.

620
00:34:33,340 --> 00:34:34,739
They're still the contractor.

621
00:34:34,739 --> 00:34:38,458
But I guess this is maybe not a very articulate way

622
00:34:38,458 --> 00:34:40,099
to address this issue.

623
00:34:40,099 --> 00:34:45,659
But the interpretation of B has been, yep, it goes up the chain.

624
00:34:45,659 --> 00:34:47,619
And you, as the general contractor,

625
00:34:47,619 --> 00:34:50,699
are ultimately responsible no matter what.

626
00:34:50,699 --> 00:34:55,259
But that's not how the actual practice works in this case,

627
00:34:55,259 --> 00:34:59,458
because you have SBL being a contractor, which

628
00:34:59,458 --> 00:35:03,539
should mean, if we take the strict textual wording,

629
00:35:03,539 --> 00:35:08,380
then Hartford, who ensures finish line,

630
00:35:08,380 --> 00:35:10,699
shouldn't be liable.

631
00:35:10,699 --> 00:35:12,940
This is more speculative, because we've

632
00:35:12,940 --> 00:35:14,978
gotten into this textual analysis.

633
00:35:14,978 --> 00:35:20,819
And so I have some difficulty reconciling B and D

634
00:35:20,819 --> 00:35:22,819
and why they should be treated differently.

635
00:35:22,819 --> 00:35:26,978
It's the statutory modifier, the word the subcontractor,

636
00:35:26,978 --> 00:35:30,259
who failed to secure coverage for its employee.

637
00:35:30,259 --> 00:35:33,779
And in this case, Oliva was the observed employee.

638
00:35:33,779 --> 00:35:36,779
Its direct employer was Enterprises,

639
00:35:36,779 --> 00:35:38,219
and they failed to secure coverage.

640
00:35:38,219 --> 00:35:39,259
You said direct employer.

641
00:35:39,259 --> 00:35:40,539
You said its employee.

642
00:35:40,539 --> 00:35:42,619
But when you go back to it, it's like clarifying.

643
00:35:42,659 --> 00:35:46,699
Let me ask you to hopefully not, I

644
00:35:46,699 --> 00:35:49,018
don't want him to ignore your question.

645
00:35:49,018 --> 00:35:51,059
My question is inconsistent with how

646
00:35:51,059 --> 00:35:53,539
the law is interpreted, the statutes,

647
00:35:53,539 --> 00:35:55,898
as far as the vertical.

648
00:35:55,898 --> 00:35:57,179
I think it works well.

649
00:35:57,179 --> 00:36:00,059
I mean, I think 1B gets coverage to the employee.

650
00:36:00,059 --> 00:36:02,179
That was the public policy of 1B.

651
00:36:02,179 --> 00:36:03,500
It makes everybody.

652
00:36:03,500 --> 00:36:05,940
But that's not how the wording seems to be.

653
00:36:05,940 --> 00:36:09,018
That's not how the wording seems to be if she is correct

654
00:36:09,018 --> 00:36:12,179
that SBL is now the contractor.

655
00:36:12,219 --> 00:36:14,099
Again, for argument's sake, even if that's

656
00:36:14,099 --> 00:36:16,500
the case, which I don't concede that's exactly the case,

657
00:36:16,500 --> 00:36:18,578
under 1D, I'm not conceding that.

658
00:36:18,578 --> 00:36:20,578
What I am saying is even if that's the case,

659
00:36:20,578 --> 00:36:23,018
then the subcontractor who failed to secure coverage

660
00:36:23,018 --> 00:36:25,539
for its employee is still Enterprises.

661
00:36:25,539 --> 00:36:27,819
And they have received their statutory remedy.

662
00:36:27,819 --> 00:36:29,380
They just don't like it because they

663
00:36:29,380 --> 00:36:32,219
think that that particular entity is not collectible.

664
00:36:32,219 --> 00:36:35,139
So believe it or not, this does have something to do

665
00:36:35,139 --> 00:36:37,219
with Judge Zilberman's question.

666
00:36:37,219 --> 00:36:39,619
So it's curious.

667
00:36:40,578 --> 00:36:43,340
I agree with Judge Zilberman that it could

668
00:36:43,340 --> 00:36:45,380
be interpreted in multiple ways.

669
00:36:45,380 --> 00:36:45,898
Maybe.

670
00:36:45,898 --> 00:36:48,259
But it's curious that it works the way it does.

671
00:36:48,259 --> 00:36:51,779
But I think it works the way it does for this reason.

672
00:36:51,779 --> 00:36:56,059
The interpretation is as it is for this reason.

673
00:36:56,059 --> 00:37:00,298
All the employees are Hartford's employees under subsection B.

674
00:37:00,298 --> 00:37:00,978
Right?

675
00:37:00,978 --> 00:37:04,139
That's the mechanism that makes not Hartford, whatever,

676
00:37:04,139 --> 00:37:05,619
not the insurer, but finish line.

677
00:37:05,619 --> 00:37:07,898
Right?

678
00:37:07,898 --> 00:37:08,418
OK.

679
00:37:08,418 --> 00:37:11,139
So that may not satisfy Judge Zilberman's question

680
00:37:11,139 --> 00:37:13,099
about why it's curiously interpreted this way.

681
00:37:13,099 --> 00:37:15,018
But that's the interpretive mechanism.

682
00:37:15,018 --> 00:37:15,518
Right?

683
00:37:15,518 --> 00:37:16,018
Yeah.

684
00:37:16,018 --> 00:37:19,458
So why does that also not apply to Structures?

685
00:37:19,458 --> 00:37:22,578
All the employees are Structures employees as well

686
00:37:22,578 --> 00:37:25,819
if Structures is a contractor for its subcontractor

687
00:37:25,819 --> 00:37:26,340
Enterprises.

688
00:37:26,340 --> 00:37:29,578
Because D specifically says it's the subcontractor who

689
00:37:29,578 --> 00:37:30,819
failed to secure coverage.

690
00:37:30,819 --> 00:37:32,340
And if it wanted to say.

691
00:37:32,340 --> 00:37:32,978
Let me ask you.

692
00:37:32,978 --> 00:37:35,340
So why did both of them fail to secure coverage?

693
00:37:35,340 --> 00:37:36,858
The legislature, if they wanted to.

694
00:37:36,858 --> 00:37:40,018
It's a subcontractor who failed to secure coverage.

695
00:37:40,018 --> 00:37:41,978
It says the subcontractor.

696
00:37:41,978 --> 00:37:45,699
Employee of a subcontractor who has failed to secure coverage.

697
00:37:45,699 --> 00:37:48,739
And then it shall be entitled to recover from the subcontractor.

698
00:37:48,739 --> 00:37:49,539
Exactly.

699
00:37:49,539 --> 00:37:50,539
Because I know it says a.

700
00:37:50,539 --> 00:37:52,858
There's only one subcontractor who employed someone

701
00:37:52,858 --> 00:37:56,539
in Florida that failed to secure coverage.

702
00:37:56,539 --> 00:37:59,078
I'm still trying to get you to address that argument saying,

703
00:37:59,078 --> 00:38:01,619
well, couldn't it be that Structures also

704
00:38:01,619 --> 00:38:04,659
failed to secure such payment of I-4430.

705
00:38:04,659 --> 00:38:08,898
If by virtue of subsection B, finish line

706
00:38:08,898 --> 00:38:10,898
is the employer of everybody down the line,

707
00:38:10,898 --> 00:38:13,659
why isn't Structure also the employer of everyone

708
00:38:13,659 --> 00:38:14,940
down the line from it?

709
00:38:14,940 --> 00:38:17,739
And why isn't Structure?

710
00:38:17,739 --> 00:38:18,578
I have my answer.

711
00:38:18,578 --> 00:38:19,500
And I gave it earlier.

712
00:38:19,500 --> 00:38:20,699
But that's why I opened.

713
00:38:20,699 --> 00:38:22,500
You don't like my answer, apparently.

714
00:38:22,500 --> 00:38:24,500
No, I hear what you're saying.

715
00:38:24,500 --> 00:38:27,898
And I think you can twist the statute to that meeting.

716
00:38:27,898 --> 00:38:28,659
I think you can.

717
00:38:28,659 --> 00:38:31,179
But the legislature knew what they were doing.

718
00:38:31,179 --> 00:38:33,380
And if they wanted liability reimbursement.

719
00:38:33,380 --> 00:38:34,940
So let me ask you my question again,

720
00:38:34,940 --> 00:38:36,338
because you don't like my answer.

721
00:38:36,338 --> 00:38:39,460
And maybe it's because I wasn't clear.

722
00:38:39,460 --> 00:38:41,019
And that is probably the case.

723
00:38:41,019 --> 00:38:43,019
It's probably because I wasn't clear.

724
00:38:43,019 --> 00:38:45,899
I'll just be more direct than I was with opposing counsel.

725
00:38:50,899 --> 00:38:57,139
Does either Structures or finish line under 440.3,

726
00:38:57,139 --> 00:38:58,619
are they not liable?

727
00:38:58,619 --> 00:39:03,778
I understand 1B is a liability provision.

728
00:39:03,778 --> 00:39:08,259
But as far as an insurance mandate,

729
00:39:08,259 --> 00:39:12,059
does 443.8 mandate that if enterprises

730
00:39:12,059 --> 00:39:15,899
doesn't have workers' comp insurance for Eliva,

731
00:39:15,899 --> 00:39:18,418
that finish line is supposed to?

732
00:39:18,418 --> 00:39:22,658
If finish line, and I'm sorry, if Structure SBL

733
00:39:22,658 --> 00:39:26,179
was doing business in Florida and had employees in Florida,

734
00:39:26,179 --> 00:39:28,538
it would be required to have workers' comp.

735
00:39:29,538 --> 00:39:30,038
OK.

736
00:39:30,038 --> 00:39:32,219
Structures, that's the factual issue

737
00:39:32,219 --> 00:39:33,338
that I don't want to care.

738
00:39:33,338 --> 00:39:35,978
Hypothetically, we're not conceding

739
00:39:35,978 --> 00:39:40,418
for the sake of discussion that Structures is subject to 443.8.

740
00:39:40,418 --> 00:39:45,259
Was it required to insure Mr. Eliva?

741
00:39:45,259 --> 00:39:46,739
Basically, no.

742
00:39:46,739 --> 00:39:49,059
Enterprises was required to insure Mr. Eliva.

743
00:39:49,059 --> 00:39:50,460
It's employee, and that's 1D.

744
00:39:50,460 --> 00:39:51,579
That's what it's all about.

745
00:39:51,579 --> 00:39:52,079
OK.

746
00:39:52,079 --> 00:39:52,579
OK.

747
00:39:52,579 --> 00:39:53,579
I just want to be clear.

748
00:39:53,579 --> 00:39:55,739
So it's not required to insure him.

749
00:39:55,739 --> 00:39:59,658
It's just liable if it's the contractor, if he gets hurt,

750
00:39:59,658 --> 00:40:02,259
and it's subcontractor doesn't hold workers' comp insurance.

751
00:40:02,259 --> 00:40:02,759
Exactly.

752
00:40:02,759 --> 00:40:03,259
OK.

753
00:40:03,259 --> 00:40:04,219
So we're clear on that.

754
00:40:04,219 --> 00:40:08,338
So that means finish line, also under 443.8,

755
00:40:08,338 --> 00:40:10,619
we're presuming finish line, and let's just

756
00:40:10,619 --> 00:40:14,899
say Structures is in Nebraska and not Canada or whatever.

757
00:40:14,899 --> 00:40:19,019
Under 443.8, neither finish line nor Structures

758
00:40:19,019 --> 00:40:21,579
is required under an insurance mandate

759
00:40:21,579 --> 00:40:24,579
to carry workers' comp insurance for its sub or sub,

760
00:40:24,579 --> 00:40:27,219
sub, sub, or sub, sub, sub contractors' employees, right?

761
00:40:27,219 --> 00:40:30,699
Mr. Benzoli, I'm going to let you answer that question.

762
00:40:30,699 --> 00:40:32,858
I've let you go over by about three minutes,

763
00:40:32,858 --> 00:40:36,059
and this is an interesting case with a lot of complexity.

764
00:40:36,059 --> 00:40:37,019
It is a lot of twists.

765
00:40:37,019 --> 00:40:38,219
And so I don't want to work.

766
00:40:38,219 --> 00:40:39,778
I'm not going to cut Judge Atkinson off

767
00:40:39,778 --> 00:40:40,179
if he has a follow-up.

768
00:40:40,179 --> 00:40:41,259
I'm going to answer the question.

769
00:40:41,259 --> 00:40:42,639
I'm going to answer the question.

770
00:40:42,639 --> 00:40:44,179
I just don't want to forget it.

771
00:40:44,179 --> 00:40:48,259
The issue is, oh, Lord, I just almost forgot it.

772
00:40:48,259 --> 00:40:49,460
No.

773
00:40:49,819 --> 00:40:57,099
The issue is that 1D takes care of that.

774
00:40:57,099 --> 00:40:59,978
Wherever you are, 443.8 says if you're

775
00:40:59,978 --> 00:41:01,418
going to do business in the state,

776
00:41:01,418 --> 00:41:04,418
you have to have a workers' compensation coverage.

777
00:41:04,418 --> 00:41:05,819
That's one statute.

778
00:41:05,819 --> 00:41:06,699
Fantastic.

779
00:41:06,699 --> 00:41:07,858
I agree with that statute.

780
00:41:07,858 --> 00:41:09,059
We all agree.

781
00:41:09,059 --> 00:41:13,099
Then the next thing you come over here is 440 takes care of it.

782
00:41:13,099 --> 00:41:18,500
It makes the primary contractor ultimately

783
00:41:18,500 --> 00:41:21,579
responsible for coverage of every person that

784
00:41:21,579 --> 00:41:23,219
steps foot on that site.

785
00:41:23,219 --> 00:41:27,699
And it's his duty under 1C to collect insurance certificates

786
00:41:27,699 --> 00:41:29,739
from everybody who are going to step on the site.

787
00:41:29,739 --> 00:41:32,259
And if he fails in that duty, he becomes responsible.

788
00:41:32,259 --> 00:41:33,658
And that's what the statute says,

789
00:41:33,658 --> 00:41:34,978
and that's what happened here.

790
00:41:34,978 --> 00:41:36,380
And that's exactly what happened.

791
00:41:36,380 --> 00:41:38,019
So all of these work together.

792
00:41:38,019 --> 00:41:40,298
It's a very simple process.

793
00:41:40,298 --> 00:41:43,259
443.8, I have no qualms with it.

794
00:41:43,259 --> 00:41:44,019
I don't.

795
00:41:44,019 --> 00:41:47,658
But the part we're missing, and it's

796
00:41:47,658 --> 00:41:49,819
set forth in the Collins case, I'm sorry,

797
00:41:49,819 --> 00:41:52,139
the fidelity of the Collins case,

798
00:41:52,139 --> 00:41:55,338
is the contractor is ultimately responsible under 443.

799
00:41:55,338 --> 00:41:56,179
That's it.

800
00:41:56,179 --> 00:41:57,778
So with that, I thank you.

801
00:41:57,778 --> 00:41:59,858
I'd ask the court to affirm the ruling.

802
00:41:59,858 --> 00:42:00,380
Very good.

803
00:42:00,380 --> 00:42:01,219
Thank you very much.

804
00:42:01,219 --> 00:42:03,778
Thank you, Judge.

805
00:42:03,778 --> 00:42:05,899
Counsel, you had four minutes reserved.

806
00:42:05,899 --> 00:42:07,940
But opposing counsel got a couple extra minutes,

807
00:42:07,940 --> 00:42:09,380
so you will have it as well.

808
00:42:09,380 --> 00:42:10,460
Thank you so much, Aaron.

809
00:42:10,460 --> 00:42:12,259
I really appreciate it, especially because

810
00:42:12,259 --> 00:42:14,579
of the heated debate here.

811
00:42:14,619 --> 00:42:16,778
And I wanted to start, before I forget,

812
00:42:16,778 --> 00:42:19,579
with directing the court's attention to some

813
00:42:19,579 --> 00:42:24,099
of our sites in the reply brief that clearly demonstrate

814
00:42:24,099 --> 00:42:26,940
we don't have any factual issue about the fact

815
00:42:26,940 --> 00:42:31,538
that Structure SBL had employees in Florida,

816
00:42:31,538 --> 00:42:33,179
had three employees.

817
00:42:33,179 --> 00:42:35,978
They didn't file for any exception

818
00:42:35,978 --> 00:42:38,739
that either of them are kind of management that shouldn't

819
00:42:38,739 --> 00:42:41,538
be considered employees.

820
00:42:41,538 --> 00:42:45,778
One of them had site visits to Florida.

821
00:42:45,778 --> 00:42:49,500
Two of them, they argued there's some independent contractor.

822
00:42:49,500 --> 00:42:51,978
But that particular person, I believe

823
00:42:51,978 --> 00:42:57,619
it was Mr. Fortier or Mr. Rancourt, either one of them,

824
00:42:57,619 --> 00:43:03,619
had even an email with Structure SBL domain in it.

825
00:43:03,619 --> 00:43:07,179
And it's page one and two of our reply brief.

826
00:43:07,179 --> 00:43:15,298
So this idea that we have a foreign entity who's not even

827
00:43:15,298 --> 00:43:16,940
present in Florida is completely wrong.

828
00:43:16,940 --> 00:43:18,440
Does that really matter to the discussion

829
00:43:18,440 --> 00:43:19,579
that we've been having?

830
00:43:19,579 --> 00:43:23,059
Well, it matters to the point, I apologize.

831
00:43:23,059 --> 00:43:25,059
I should have let you finish the question,

832
00:43:25,059 --> 00:43:26,940
but I only have four minutes.

833
00:43:26,940 --> 00:43:29,460
OK, well, does it really matter to the question?

834
00:43:29,460 --> 00:43:33,460
Because the employees of, I think it's Precision,

835
00:43:33,460 --> 00:43:36,460
now I've gotten confused on the names of the three entities

836
00:43:36,460 --> 00:43:36,940
here.

837
00:43:36,940 --> 00:43:37,739
Enterprises.

838
00:43:37,739 --> 00:43:39,460
Enterprises, enterprises, sorry.

839
00:43:39,460 --> 00:43:47,139
Enterprises, Structure is the statutory employee for them.

840
00:43:47,139 --> 00:43:49,139
So does it really matter if they actually

841
00:43:49,139 --> 00:43:51,219
have people here or not?

842
00:43:51,219 --> 00:43:53,179
It matters.

843
00:43:53,179 --> 00:43:57,940
They're required to get workers' compensation

844
00:43:57,940 --> 00:44:01,658
for their own employers and for all the employers.

845
00:44:01,658 --> 00:44:04,739
That brings me back to my hobby horse.

846
00:44:04,739 --> 00:44:05,239
Sorry?

847
00:44:05,239 --> 00:44:07,559
That brings me back to my hobby horse.

848
00:44:07,559 --> 00:44:11,278
Structure is required to have a policy for whom?

849
00:44:11,278 --> 00:44:13,880
For the employees.

850
00:44:13,880 --> 00:44:15,440
For its employees, right?

851
00:44:15,440 --> 00:44:18,639
Its and the subcontractor.

852
00:44:18,639 --> 00:44:19,139
Where?

853
00:44:19,139 --> 00:44:20,559
Where does it say that?

854
00:44:20,559 --> 00:44:21,399
Well, because.

855
00:44:21,399 --> 00:44:22,918
Now, I'm not saying it's not liable.

856
00:44:22,918 --> 00:44:25,358
I agree that it's liable if Enterprises doesn't have

857
00:44:25,358 --> 00:44:28,000
workers' comp for Mr. Oliva.

858
00:44:28,000 --> 00:44:29,079
Any contractor.

859
00:44:29,079 --> 00:44:32,158
The closing statement of opposing counsel

860
00:44:32,239 --> 00:44:38,119
is that C makes the contractor responsible

861
00:44:38,119 --> 00:44:40,239
if the subcontractor doesn't have insurance.

862
00:44:40,239 --> 00:44:41,559
But what does responsible mean?

863
00:44:41,559 --> 00:44:43,038
Does it have to insure them?

864
00:44:43,038 --> 00:44:46,639
Or does it just have to pay out if he gets injured?

865
00:44:46,639 --> 00:44:49,319
I mean, it should be responsible.

866
00:44:49,319 --> 00:44:49,819
It doesn't.

867
00:44:49,819 --> 00:44:52,478
It says contractors shall require a subcontractor

868
00:44:52,478 --> 00:44:54,199
provide insurance.

869
00:44:54,199 --> 00:44:57,079
It doesn't say, if not, you've got to have a policy for them.

870
00:44:57,079 --> 00:44:57,918
It says.

871
00:44:57,918 --> 00:45:01,038
It just says you're liable if they don't have it.

872
00:45:01,038 --> 00:45:03,078
Abbott, you've got to pay for that guy's injury.

873
00:45:03,078 --> 00:45:05,558
No, but it does say in section 1A

874
00:45:05,558 --> 00:45:09,318
that any contractor or subcontractor who

875
00:45:09,318 --> 00:45:11,758
engages in public or private construction in the state

876
00:45:11,758 --> 00:45:13,878
shall secure and maintain compensation

877
00:45:13,878 --> 00:45:16,718
for his or her employees under this chapter.

878
00:45:16,718 --> 00:45:18,558
So you were saying that Structures

879
00:45:18,558 --> 00:45:22,318
needs to have which employees should be covered

880
00:45:22,318 --> 00:45:23,398
under Structures policy?

881
00:45:26,638 --> 00:45:28,917
All the employees that are considered

882
00:45:28,917 --> 00:45:30,158
employees of disabled.

883
00:45:30,158 --> 00:45:31,238
You're going back to that.

884
00:45:31,238 --> 00:45:36,797
So B means you're contending that if the Department

885
00:45:36,797 --> 00:45:39,598
of Economic Opportunity walked onto the site

886
00:45:39,598 --> 00:45:42,758
and they'd say you're in regulatory noncompliance

887
00:45:42,758 --> 00:45:44,518
because you should have had a policy that

888
00:45:44,518 --> 00:45:47,398
covered your subcontractor's employees.

889
00:45:47,398 --> 00:45:50,038
Under 440.3.

890
00:45:50,038 --> 00:45:52,598
I don't want to speak for the department, Your Honor,

891
00:45:52,598 --> 00:45:55,637
because I wasn't thinking about that issue.

892
00:45:55,637 --> 00:45:58,157
But I want to point out that we are not asking this court

893
00:45:58,157 --> 00:45:59,878
to rewrite the statute.

894
00:45:59,918 --> 00:46:03,358
We're just asking the court to read it harmoniously,

895
00:46:03,358 --> 00:46:08,518
that this subsection D1 with subsection B,

896
00:46:08,518 --> 00:46:14,677
because reading it like that not only gives effect

897
00:46:14,677 --> 00:46:20,358
to the mandatory right to recover,

898
00:46:20,358 --> 00:46:23,758
but it also doesn't render other provisions

899
00:46:23,758 --> 00:46:25,758
in the statute negatory.

900
00:46:25,758 --> 00:46:28,798
The way that the trial court interpreted it

901
00:46:28,798 --> 00:46:32,718
is very narrow to apply, and there's no support for that.

902
00:46:32,718 --> 00:46:36,557
I want to point out to the court that subsection D does not

903
00:46:36,557 --> 00:46:40,438
say if the general contractor becomes liable.

904
00:46:40,438 --> 00:46:43,877
It says if a contractor becomes liable.

905
00:46:43,877 --> 00:46:47,758
So our argument is here we have a contractor

906
00:46:47,758 --> 00:46:52,957
who became liable, which is Structure SPL.

907
00:46:52,957 --> 00:46:55,597
I get confused about all these names as well.

908
00:46:55,597 --> 00:47:02,237
Structure SPL becomes liable for Mr. Oliva's injuries,

909
00:47:02,237 --> 00:47:06,038
doesn't have workers' comp, and is not on the hook.

910
00:47:06,038 --> 00:47:09,077
Then what is the meaning of having the vertical ribbon?

911
00:47:09,077 --> 00:47:10,517
Let me ask you that.

912
00:47:10,517 --> 00:47:13,478
Wait a minute, if you say the first instance

913
00:47:13,478 --> 00:47:15,118
of the word contractor in subsection D,

914
00:47:15,118 --> 00:47:17,758
you're saying that's structures.

915
00:47:17,758 --> 00:47:21,077
So you're saying structures is liable to structures?

916
00:47:21,077 --> 00:47:23,998
Because it says if a contractor becomes liable,

917
00:47:23,998 --> 00:47:26,437
then the contractor shall be entitled to recover

918
00:47:26,437 --> 00:47:28,157
from its subcontractor.

919
00:47:28,157 --> 00:47:29,278
That's enterprises.

920
00:47:29,278 --> 00:47:30,237
Exactly.

921
00:47:30,237 --> 00:47:34,398
So how does that make finish line structures

922
00:47:34,398 --> 00:47:35,517
liable to finish line?

923
00:47:35,517 --> 00:47:39,478
Because neither Structure SPL nor enterprises

924
00:47:39,478 --> 00:47:42,278
had workers' comp, and neither paid.

925
00:47:42,278 --> 00:47:46,877
So automatically under the statute,

926
00:47:46,877 --> 00:47:49,597
Hartford became liable as third-party payor

927
00:47:49,597 --> 00:47:52,437
for finish line to pay workers' comp,

928
00:47:52,437 --> 00:47:55,797
because that was the only insured entity.

929
00:47:55,797 --> 00:47:58,998
The general contractor was the only one insured.

930
00:47:58,998 --> 00:48:04,317
And by interpreting it the way the trial court did,

931
00:48:04,317 --> 00:48:10,278
this entire vertical privity has no meaning.

932
00:48:10,278 --> 00:48:13,797
If somebody like Structure SPL can come into Florida

933
00:48:13,797 --> 00:48:17,597
from Canada, not insure its own employees

934
00:48:17,597 --> 00:48:21,437
and that of its subcontractors, and then

935
00:48:21,437 --> 00:48:26,597
get away without reimbursing, the right under D1

936
00:48:26,597 --> 00:48:29,118
is a mandatory reimbursement right.

937
00:48:29,118 --> 00:48:33,038
But the trial court interpreted the statute in such a way

938
00:48:33,038 --> 00:48:35,437
that it limits that right.

939
00:48:35,437 --> 00:48:41,358
And now it's limited to only enterprises.

940
00:48:41,358 --> 00:48:44,398
But it's Structure SPL as well who failed.

941
00:48:44,398 --> 00:48:47,198
And this is our broader interpretation.

942
00:48:47,198 --> 00:48:50,317
But under our narrower interpretation,

943
00:48:50,317 --> 00:48:54,918
we should still go to the meaning of the statute

944
00:48:54,918 --> 00:48:59,478
and look at the fact that the contractor in this case

945
00:48:59,478 --> 00:49:01,838
would be, let's say, general contractor has

946
00:49:01,838 --> 00:49:07,077
to pay because none of the subcontractor or sub-sub paid

947
00:49:07,077 --> 00:49:11,157
should be able to recover from the subcontractor.

948
00:49:11,157 --> 00:49:17,759
Who's the subcontractor relative to finish line?

949
00:49:17,759 --> 00:49:20,437
It's Structure SPL.

950
00:49:20,437 --> 00:49:24,717
Structure SPL, so finish line should

951
00:49:24,717 --> 00:49:28,117
be able to recover from Structure SPL.

952
00:49:28,117 --> 00:49:32,358
And finish line can then go down the chain, the privity,

953
00:49:32,358 --> 00:49:36,518
vertical privity chain, and recover from less enterprises.

954
00:49:36,518 --> 00:49:42,397
I still believe that the broader interpretation is better

955
00:49:42,397 --> 00:49:45,478
in effectuating the intent of the legislature

956
00:49:45,478 --> 00:49:51,198
by making the right mandatory because it permits the Hartford

957
00:49:51,198 --> 00:49:56,317
or finish line builders here to recover the money paid

958
00:49:56,317 --> 00:50:00,918
from either or or both if, let's say, one is insolvent

959
00:50:00,918 --> 00:50:03,397
or one doesn't have sufficient funds.

960
00:50:03,397 --> 00:50:06,078
Counsel, I think we've got these points.

961
00:50:06,078 --> 00:50:08,038
I think they've been adequately made.

962
00:50:08,038 --> 00:50:11,198
I have one question before you sit down unrelated specifically

963
00:50:11,198 --> 00:50:12,678
to this case.

964
00:50:12,717 --> 00:50:17,798
But the concept of Hartford insures finish line.

965
00:50:17,798 --> 00:50:20,717
And it has responsibility, we know, down the chain.

966
00:50:20,717 --> 00:50:23,798
But if finish line didn't make certain

967
00:50:23,798 --> 00:50:29,437
that its subcontractor had insurance and so on down the line

968
00:50:29,437 --> 00:50:30,958
as we know happened in this case,

969
00:50:30,958 --> 00:50:34,638
does Hartford potentially have a claim against finish line?

970
00:50:34,638 --> 00:50:39,918
Because it's providing insurance for which finish line arguably

971
00:50:39,918 --> 00:50:41,837
didn't do everything it was supposed to do.

972
00:50:41,837 --> 00:50:44,277
And structure didn't do everything it was supposed to.

973
00:50:44,277 --> 00:50:45,397
That's more rhetorical.

974
00:50:45,397 --> 00:50:47,877
I mean, that's obviously not in front of us today.

975
00:50:47,877 --> 00:50:49,277
I just think this is fascinating.

976
00:50:49,277 --> 00:50:51,678
And part of it is insurance premiums

977
00:50:51,678 --> 00:50:53,717
for workers' compensation are determined

978
00:50:53,717 --> 00:50:55,478
based on number of employees.

979
00:50:55,478 --> 00:50:57,317
Well, you also have statutory employees

980
00:50:57,317 --> 00:51:00,157
who nobody knows how many of those there are.

981
00:51:00,157 --> 00:51:01,837
So it creates this whole conundrum

982
00:51:01,837 --> 00:51:08,078
of how premiums are computed, who's got liability for what,

983
00:51:08,078 --> 00:51:11,997
and what happens when a contractor or subcontractor

984
00:51:11,997 --> 00:51:14,557
doesn't live up to its responsibility

985
00:51:14,557 --> 00:51:16,638
to get insurance.

986
00:51:16,638 --> 00:51:20,277
So anyway, that was more of a speech than a question.

987
00:51:20,277 --> 00:51:22,078
It's a fascinating area.

988
00:51:22,078 --> 00:51:23,277
So thank you.

989
00:51:23,277 --> 00:51:25,518
We appreciate the brief.